an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
DONKEY: You leave them out in the sun, they get all brown, start sprouting' little white hairs.
SHREK: No! Layers! Onions have layers!
I overhead my kids playacting these lines and they seemed a perfect example of a central mistake in using metaphors. The author’s intended meaning is often not the meaning taken by the audience. Every metaphor has maniforld meanings. Every metaphor "hides" part of its meaning. My father-in-law, Theodore L. Brown, taught me this in his excellent book, Making Truth: Metaphor in Science.
When you tell a friend: “This article about city corruption is dynamite.” You might only intend to suggest that it is interesting. But the metaphor, like dynamite, might explode in ways that injurer the author.
A hard, but useful, lesson is to pause and consider unintended meanings of metaphors before you trot them out.
I still fall prey to this problem. I remember presenting to my colleagues the case for a truly great appointments candidate late one Spring. I concluded my presentation by saying that the recommendation of the appointments committee put me in mind of the “Wedding at Cana”. I had intended this to bring to their minds that the appointments committee had saved the best for last. But some of my colleagues pointed out that I might have been implying that this was the committee’s first miracle, or even worse that this process had somehow converting the candidate’s scholarship from water into wine. Posted
by Ian Ayres [link]
Friday, December 22, 2006
The Anti-Torture Memos
The Anti-Torture Memos Arranged by topic
We've previously compiled a running list of all posts related to civil liberties, the War on Terror, and presidential power, listed by author.
By popular demand, here is a list of the essays grouped by topic. We've eliminated postings that are very short or that mostly quote newspaper articles. What follows is a compendium of substantive analyses on some of the key issues of the War on Terror by the authors here at Balkinization.
The Anti-Torture Memos: Balkinization Posts on Civil Liberties, the War on Terror and Presidential Power
The most recent edition of Perspectives on Politics has an excellent roundtable on Donald Downs's book, RESTORING FREE SPEECH AND LIBERTY ON CAMPUS. Downs, who originally had thought certain forms of hate speech ought to be banned (see his important work, NAZIS IN SKOKIE), later become a leading opponent of campus restrictions on hate speech. RESTORING FREE SPEECH explains the reasons for his conversion and documents the debates over restrictions at Wisconsin and other universities. While general agreement exists among the participants in the roundtable that campus restrictions, particularly as applied by administrators, were either ineffective or inappropriate, serious debate takes place on other matters. Nancy Hirschmann has a nice short piece suggesting that Professor Downs may have underestimated the extent to which minority speech is still effectively silenced on most campuses, Jeremy Rabkin provides reasons for thinking the system of free expression on campus is both healthier and sicker than commonly thought, and Geoffrey Stone raises some legal issues. Given that all three take significant issue with Downs, the one weakness in presentation is that he does not get a chance to reply.
Several thoughts inspired by the pieces. The first is that at least I seem to be witnessing a general silencing in my classes. When I started as a teaching assistant 25 years ago, I had to work hard containing the affirmative action discussion and work harder to get anyone to talk about the dormant commerce clause. Now I find more and more students willing to talk about the dormant commerce clause, which is safe (no one was ever accused of being insensitive or militant for comments on the state market exception), but students of all persuasions, liberal, conservative, socialist, libertarian, or whatever, are very quiet on hot button issues. I do not think this is simply a consequence of political correctness on the left or silencing on the right (though no doubt both in different degrees are present). Rather, I have a sense that the students have stopped trying to persuade each other on these matters. Too bad.
The other thoughts concern the notorious "water buffalo" incident at Penn. As presented in the media, the kid was suspended for yelling a generic Hebrew insult (of the sort "may all your teeth but one fall out and may you have a toothache") at an African-American sorority that was having a loud party late at night. The Hirschmann piece, however, provides much evidence suggesting that, in context, the insult was clearly racial and that the student probably understood this. Given the context, I think a very strong apology at the least was clearly owed. On the other hand, while agreeing that campuses should not tolerate racist insults, I've often thought that the incident also demonstrates how college campuses routinely tolerate uncivil behavior. College students who are fond of sleeping at reasonable hours and, often, are required to live in the dorms typically get no support when they complain about loud music blaring every weekend night and sometimes every night. In this sense, I suspect, mutal apologies were owed in the "water buffalo" case. I do think we need to find better ways of talking about our differences and different opinions on campus, but those differences are not simply racial and civility means more than refraining from certain kinds of insults. Posted
by Mark Graber [link]
Tuesday, December 19, 2006
The Wizard of Oz--Did You Know?
Every now and then I read something that comes as a complete surprise. You might have the same reaction to the following passage from Jack Weatherford's The History of Money (1997), which comes out of his discussion of the late nineteenth century debate over adding silver to the gold monetary standard:
The most memorable work of literature to come from the debate over gold and silver in the United States was The Wonderful Wizard of Oz, published in 1900, by journalist L. Frank Baum, who greatly distrusted the power of the city financiers and who supported a bimetallic dollar based on both gold and silver. Taking great literary license, he summarized and satirized the monetary debate and history of the era through a charming story about a naive but good Kansas farm girl named Dorothy, who represented the average rural American citizen. Baum seems to have based her character on the Populist orator Leslie Kelsey, nicknamed "the Kansas Tornado."
After the cyclone violently rips Dorothy and her dog out of Kansas and drops them in the East, Dorothy sets out on the gold road to fairyland, which Baum calls Oz, where the wicked witches and wizards of banking operate. Along the way she meets the Scarecrow, who represents the American farmer; the Tin Woodman, who represents the American factory worker; and the Cowardly Lion, who represents William Jennings Bryan. The party's march on Oz is a re-creation of the 1894 march of Coxey's Army, a group of unemployed men led by 'General' Jacob S. Coxey to demand another public issue of $500 million greenbacks and more work for common people.
Marcus Hanna, the power behind the Republican party and the McKinley administration, was the wizard controlling the mechanisms of finance in the Emerald City. He was the wizard of the Gold Ounce--abbreviated, of course, to Wizard of Oz--and the Munchkins were the simpleminded people of the East who did not understand how the wizard and his fellow financiers pulled the levers and strings that controlled the money, the economy, and the government.
In the Emerald City ruled by the Wizard of Oz, the people were required to wear green-colored glasses attached by a gold buckle. Beyond the city, the Wicked Witch of the West had enslaved the Yellow Winkies, a reference to the imperialist aims of the Republican administration, which had captured the Philippines from Spain and refused to grant them independence.
In the end, all the good American citizens had to do was expose the wizard and his witches for the frauds they were, and all would be well in the bimetal monetary world of silver and gold. In the process, the farmer Scarecrow found out how intelligent he was, the lion found his courage, and the working Tin Man received a new source of strength in a bimetallic tool--a golden ax with a blade of silver--and he would never rust again as long as he had his silver oil can encrusted with gold and jewels.
I'm sure others know about this, and maybe I'm exposing my particular ignorance, but I had no idea that The Wizard of Oz was a political allegory. What makes this discovery especially jolting, for me at least, is that its meaning at the time--when many people would have recognized Baum's allusions--was so radically different from its taken-for-granted meaning today.
I hesitate to sully a discovery that is fascinating for its own sake, but I will use this example to quickly make a serious (albeit tangential) point. The original meaning theory of constitutional interpretation has prominent contemporary advocates--including, famously, Justice Scalia--who point to solid political theory arguments in support. But we must be mindful of the elusiveness and haze that envelops original meanings. Unless we turn constitutional interpretation over to trained historians with ample resources and time (and even then there will be problems), our assumptions about original meaning will be precarious. Posted
by Brian Tamanaha [link]
Government backs away from unconstitutional use of subpoena power
Yesterday the government backed away from its attempt to use the subpoena power as a prior restraint to force the ACLU to hand over all copies of a secret document. Not only that, the government declassified the document itself. Here is the judge's order noting the government's change of mind, and here (gasp!) is the secret document whose disclosure the government insisted was so important that it had to abuse the investigative powers of the grand jury.
As you will see, the document is nothing other than an memo about when the government would permit photographs of prisoners of war and detainees in the Iraqi Theater of Operations. Not only is this document not crucial to national security, it probably never should have been classified at all.
And yet the government insisted that it didn't snap up every copy of this memo, something terrible would happen to the United States.
This episode aptly demonstrates why claims that we must surrender our freedoms following 9/11 and the War on Terror must be taken with an enormous grain of salt. It's very easy for the government to make these claims, and, as this case shows, it is likely to make them when they are completely bogus. The reasons have to do less with the venality of specific individuals than with the nature of bureacracies, which are naturally allergic to oversight, and which usually seek to maxmize their authority and their lack of accountability.
Once we let our government officials assert emergency as the justification for limiting our rights, they will become addicted to the gesture, and will use the language of emergency and national security to justify more and more things. First they will use the idea to cover up potential political embarassments. Then, as this case demonstrates, they will start to use the gesture reflexively, out of habit, and for no good reason. What the government tired to do in this case-- perform an end run around the Pentagon Papers case for the sake of an unimportant document like this one-- should outrage every American who believes in freedom of speech.
The only way to keep government officials from this particular addiction is to call them out when they try to slip into bad old habits. Hence the old saying that eternal vigillance is the price of liberty.
[This essay was written for the first anniversary of the 9/11 attacks, and published in the New Orleans Times-Picayune on September 11, 2002. Given the story just blogged about the government's misuse of the supoena power to crush First Amendment rights, it seems entirely appropriate to republish the essay now]
* * * * * * *
Whenever our country faces new threats, changes in constitutional structure soon follow. That was true during both World War II and the Cold War. But these changes do not require us to give up our civil liberties. Quite the contrary: Although World War II began with the internment of Japanese-Americans, our experience of fighting a racist Nazi regime eventually led President Harry S. Truman to desegregate the Armed Forces. The Cold War began with McCarthyite hysteria; yet the need to distinguish ourselves from communist dictatorships eventually led to Brown v. Board of Education and a great flowering of civil liberties. Repeatedly Americans have discovered that we respond best to new dangers when we remain true to our deepest values.
Today many argue that the War on Terrorism requires Americans to surrender their civil rights and restructure our constitutional system to give the President ever greater power. But the lesson of history is precisely the opposite. Poised on the brink of war, with an administration altogether too sure of itself, we need democratic accountability and constitutional safeguards more than ever.
Well before September 11th the Bush Administration sought to operate without interference or consultation and to disclose as little information as possible. Its refusal to reveal who met with Vice President Dick Cheney when the administration was formulating its energy policies is only the most well-known example. The administration's approach to the press has become increasingly Orwellian, cloaked in euphemisms and newspeak, routinely describing its positions as their opposites and blatantly denying contradictions and shifts in government policy. Secrecy has been its watchword; bullying its strategy of choice.
The events of September 11th only confirmed the administration's worst instincts about how to govern the nation. Domestically, it rounded up hundreds of immigrants while refusing to release their names to the public. It announced the creation of secret military tribunals with no right of appeal to the judiciary. It detained American citizens in military prisons without the right to consult an attorney or seek judicial review. It ordered a wholesale closure of immigration hearings to the public, barring not only the press but family members. It repeatedly sought to make as much new law as possible without consulting Congress, and it repeatedly insisted before the courts that it had unreviewable power to do whatever it wanted to prosecute the War on Terrorism. In foreign policy it has announced its determination to attack another country preemptively in violation of international law, whether or not Congress gives authorization, and whether or not our allies support us. Only after weeks of protest from congressmen and former government officials did the President grudgingly announce that he would seek Congressional approval for an invasion of Iraq. Even so, administration officials have continued to promote the idea that the United States should wield its military power early, often and unilaterally to secure its interests around the world.
The Bush Administration's policies are not simply unwise or undiplomatic. They also undermine constitutional government. Open government is crucial to a free society; it keeps government officials honest and deters them from making bad decisions and covering up their mistakes. Democracy presumes that government officials are accountable to the people, but accountability becomes impossible if the people can't find out what the government is doing in their name. Separation of powers lets the different branches of government check each other's errors and enthusiasms, but it cannot work if the executive branch insists that it will do whatever it wants anyway. The rule of law prevents government officials from arbitrary action, but it means nothing if the administration can flout international agreements, round up citizens and refuse them access to the courts.
The War on Terrorism is a war to defend our country's way of life. That way of life includes a commitment to constitutional checks and balances, individual liberty, democratic accountability, open government and the rule of law. It would be ironic indeed if in our zeal to preserve our way of life we destroyed it. Posted
by JB [link]